# State of U.P v. Devendra @ Dablu & Ors

- **Citation:** (2023) 7 ILRA 834
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-14
- **Case number:** Government Appeal No. 1075 of 1990
- **Bench:** Dr. Kaushal Jayendra Thaker, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-devendra-dablu-ors-50638
- **Pages:** 15

## Headnote

Criminal Law - Indian Penal Code, 1860Section 392-Appeal against acquittal order-FIR
lodged promptly-accused persons are named in
the FIR-no explanation for recovery- enmity not
proved-set 134 of the Evidence act-quality of
evidence required-recovery of the robbed items
proved case proved beyond any reasonable
doubt u/s 392 IPC-for co-accused prosecution
could not prove conspiracy against him. Appeal
dismissed in respect of one accused-for the
rest accused persons- appeal preferred by the
State is allowed.

Appeal preferred by the State is allowed.
(E-9)

Cases cited:

## Text

_Characters 0–39,968 of 48,342. This is a partial read: ask again with offset=39968 for what follows._

834 INDIAN LAW REPORTS ALLAHABAD SERIES
have been laid shall have to be kept in
view."

27. The said decision has been
followed by this Court in a large number of
decisions including Union of India v. West
Coast Paper Mills Ltd. [(2004) 2 SCC
747]"

30. The same principles were
reiterated in a very recent decision of the
Supreme Court in Shanthi vs. T.D.
Vishwanathan and another, (2019) 11
SCC 419, where their Lordships followed
their earlier decision in Chandi Prasad.

31.

The
indisputable
position,
therefore, is that limitation has to be
reckoned from the date of the decree of the
Appellate Court, even if the date of the
order of this Court dismissing the second
appeal in limine is ignored. The appellate
decree was passed on 31.03.2011 by the
learned Additional District Judge and the
execution
application
was
made
on
21.07.2011, which was well within the
limitation of 12 years under Article 136 of
the Schedule appended to the Act of 1963.
The mention of the date of original decree
in Column No. 3 would not make any
difference
because
there
is
copious
reference in Column No. 4 of the execution
application to the decree passed in appeal.

32. In the opinion of this Court,
therefore, the execution is competent and
must proceed.

33. No other point was pressed.

34. This petition fails and is
dismissed with costs.
----------
(2023) 7 ILRA 834
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Government Appeal No. 1075 of 1990

State of U.P. ...Appellant
Versus
Devendra @ Dablu & Ors. ...Respondents

Counsel for the Appellant:
A.G.A., Sri Rajesh Kumar Pandey, Sri N.K.
Srivastava

Counsel for the Respondents:
Sri Y.D. Sharma, Anjaly Pandey, Sri Pramod Kr.
Rajpoot, Sri Sanjay Srivastava, Sri Sunil Kumar

Criminal Law - Indian Penal Code, 1860Section 392-Appeal against acquittal order-FIR
lodged promptly-accused persons are named in
the FIR-no explanation for recovery- enmity not
proved-set 134 of the Evidence act-quality of
evidence required-recovery of the robbed items
proved case proved beyond any reasonable
doubt u/s 392 IPC-for co-accused prosecution
could not prove conspiracy against him. Appeal
dismissed in respect of one accused-for the
rest accused persons- appeal preferred by the
State is allowed.

Appeal preferred by the State is allowed.
(E-9)

Cases cited:

1. Devendra @ Dablu and Mahendra are liable
to be convicted and sentenced in accordance
with law.

2. The judgment and order of acquittal passed
by the learned trial Magistrate with regard to
Durga Prasad is upheld.

3. Since accused Devendra @ Dablu and
Mahendra are not present in the Court in
person, hence they are ordered to be taken into
7 All. State of U.P. Vs. Devendra @ Dablu & Ors.
835
custody. They shall be heard on the quantum of
sentence.

4. The accused though were directed to remain
present but they are absent. Their advocate is
also absent. Hence, non-bailable warrants are
issued on the accused - Devendra @ Dablu and
Mahendra, returnable on 04.08.2023, to be
served through CJM, Bulandshahar. On the said
date they shall be brought before the Court.

List of Cases cited:

1. Mukesh Vs St. of NCT of Delhi & ors., AIR
2017 SC 2161 (three Judges Bench)

2. Bhagwan Jagannath Markad Vs St. of Mah.,
(2016) 10 SCC 537

3. Sadhu Saran Singh Vs St. of UP, (2016) 4 SCC
357

4. Pramod Kumar Vs St. NCT of Delhi, AIR 2013
SC 3344

5. Govind Raju @ Govinda Vs St. Vs& anr., AIR
2012 SC 1292

6. Sandeep Vs St. of UP, (2012) 6 SCC 107

7. Dharnidhar Vs St. of UP, (2010) 7 SCC 759

8. Dalbir Kaur Vs St. of Pun., (1976) 4 SCC 158

9. Hukum & ors.Vs St. of Raj., 2001 CrLJ 511

10. Bable Vs St. of Chhattisgarh, AIR 2012 SC
2621

11. Jarnail Singh Vs St. of Pun., 2009 (6)
Supreme 526

12. Mahaveer Singh Vs St. of Har., (2014) 6 SCC
716

13. Atluri Brahma Nandam Vs Anne Sai Bapuji and
Laxmibai Bhagwant Buva, AIR 2013 SC 1204

14. Sudip Kumar Sen Vs St. of W. B., (2016) 3
SCC 26

15. St. of UP Vs Satveer, (2015) 9 SCC 44
16. Prithvipal Singh Vs St. of Pun., 2012 (76)
ACC 680 (SC)

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This Government Appeal has been
preferred by the State to set aside the
judgment and order of acquittal dated
30.01.1990 passed by the Additional
Munsif Magistrate-IV, Bulandshahar in
Criminal Case No.1288 of 1987 (New
Criminal Case No.419 of 1989), under
Sections 392/411, 120-B IPC, Police
Station
Kotwali
Nagar,
District
Bulandshahar
by
which
the
accused
persons (respondent nos.1, 2 and 3) had
been acquitted from the charges under
Section 392 IPC.

2. In brief, facts of the case are that on
03.10.1985 the informant, Bhagwat Singh
from PHC Unchagaon, Bulandshahar took
out Rs.29,965.40/- as salary of his
departmental employees from the State
Bank, Bulandshahar, kept the same in a
leather bag and after parking the cycle at
Mr. Dalmore's house in Village Hirapur,
keeping the alleged bag in his hand walked
away towards Bus Stand, Jahangirabad. At
about 20-25 steps away from the said house
at 02:00 p.m, accused Amarnath @ Pappu,
Devendra @ Dablu riding on a Vicky
Moped motorcycle without number plate,
met with him and snatched the bag from his
hand on the gun point in which there were
Rs.29,965.40/-, a treasury register and other
papers. The informant produced a written
complaint Ex.Ka-1 at the Chowki, Nai
Mandi, Bulandshahar on which basis chik
FIR Ex.Ka-5 was prepared under Section
392 IPC. After investigation charge sheet
was submitted, charge was framed under
Section 392 IPC against the accused
836 INDIAN LAW REPORTS ALLAHABAD SERIES
persons who denied the charge and sought
for trial.

3. Following witnesses have been
examined by the prosecution:-

1
PW-1
Bhagwat Singh (informant)
2
PW-2
Jagroop
(independent
witness who turned hostile)
3
PW-3
Mahendra Singh Chauhan,
Sub-Inspector Police Station
Kotwali, Bulandshahar
4
PW-4
Rajendra Singh Chaudhary,
Sub-Inspector Police Station
Vannadevi, Aligarh.

4. Following documentary evidences have
been examined by the prosecution:-

1
Ex.Ka-1 Written Complaint
2
Ex.Ka-2 Chik FIR, recovery memo of
Goods
and
Moped
and
entries in bill register
3
Ex.Ka-3 Site Plan with Index and list
of payment of staff
4
Ex.Ka-4 Site Plan with Index,
5
Ex.Ka-5 Letter to branch manager,
SBI,
paper
regarding
payment of pay money to the
informant from bank
6
Ex.Ka-6 Chik FIR and charge sheet
7
Ex.Ka-7 Carbon copy GD and passbook
8
Ex.Ka-8 Notes
9
Ex.Ka-9
and 10
Truss of the clothes

5. Material Exhibits
1
M.Ex-1
 Bag
2
M.Ex-2
Treasury register
3
M.Ex-3
Salary particulars
4
M.Ex-4
Letter
5
M.Ex-5 and 18
Moped and paper
6
M.Ex-6-7
Seals
8
M.Ex-8-15
Bundle of notes
9
M.Ex-16-17
Truss made of
clothes

6. In brief, oral evidences of the
prosecution witnesses are as follows:-

6.1. PW-1, informant - Bhagwat Singh
stated on oath that on 03.10.1985 he was
posted as Accounts Clerk in Uchagaon
PHC. He had gone to the State Bank of
India to collect the salary of the employees.
He
had
received
salary
amounting
Rs.30,865.40/- out of which he had
deposited Rs.900/- in his and his wife's
personal
account.
Remaining
amount
Rs.29,965.40/- which was kept in the
alleged
bag
walked
through
bicycle
towards the bus stand and parked it at the
house of Dalmor Singh of Village Hirapur
and walked back on foot with the alleged
bag in his hand towards the bus stand. He
would have hardly walked about 20-25
steps,
the
accused
persons
namely
Amarnath @ Pappu (present in the court),
Devendra @ Dablu (not present in the
court) and Mahendra Singh (present in the
court) met and stopped him and forcibly
snatched the bag on the gun point.
Thereafter he made-a-noise upon which the
witnesses Dalmor Singh, Jagroop Singh,
Kailash and Sardar etc. reached there and
tried to catch the accused persons. The
accused ran away towards Syana Road
riding on Vicky brandishing the pistol.
7 All. State of U.P. Vs. Devendra @ Dablu & Ors.
837
Apart from the money in the bag, there was
a treasury register in which bills were
noted. There were other papers and stamps
also. He had himself written the complaint
Ex.Ka-1 and produced it at Chowki, Nai
Mandi.

6.2. The sealed bundle was opened
before the witness in the court. Seeing
which he deposed that this was the same
bag which the accused persons had
snatched from him. Seeing the register, he
deposed that on 03.10.1985, he had
received the bills amounts from the bank
which were noted at serial nos.123 to 129
in the said register and these entries were
signed by him after receiving the bill
amount.

6.3. In cross-examination the witness
has deposed that on the day of incident he
left Village Unchagaon at 07:30 a.m. First
of all, he reached the bank treasury at 10:15
a.m. Dalmor was his distant relative where
he used to park his bicycle. He had neither
dealing with the accused nor he had any
enmity with them since before the incident.
Being nervous, he could not mention that
he had received Rs.30,865.40/- from the
State Bank. The Inspector had recorded his
statement same day in which also he could
not said that fact. It is correct to say that the
fact about Rs.30,865.40/- was said for the
first time in the court. The fact regarding
deposition of Rs.900/- was not mentioned
in the FIR. He further deposed that it was
wrong to say that he was not knowing the
accused persons since before the incident.
It is also wrong to say that he had lodged a
false report in connivance with the police.

6.4. PW-2, Jagroop has deposed that it
was a matter of about five months before
when he was tending the potato in the field.
He has no knowledge that the accused
persons had snatched the bag or not. He did
not know the accused persons. He knew
Dalmor Singh who was his cousin. He did
not know whether Bhagwat Singh comes at
Dalmor Singh's house. This witness was
declared hostile. In cross-examination the
witness denied to give the statement to the
IO and deposed that it was wrong to say
that he deposed wrongly being warned by
the accused persons.

6.5. PW-3, SI Mahendra Singh
Chauhan, Police Station Kotwali Nagar,
District Bulandshahar deposed that on
04.10.1985 he was posted at Police Station
Kotwali Nagar. On that day he alongwith
Constable
Surendra
singh,
Constable
Pramod Kumar to investigate Case Crime
No.595, under Section 379 IPC. When he
reached at Chauraha Anoopshahar Adda, SI
Rajendra
Singh
Choudhary
Chowki
Incharge New Mandi, HC Jai Prakash and
Constable Babu Khan and Rishipal met
with him and he was told that they have to
recover the robbed articles and wished to
arrest the accused persons. On this, they
made physical search to each other and
ensured that no one had any robbed
articles. After this, they tried to take public
witness but no one was ready to cooperate.
When the witnesses were not found, he
along with the other policemen reached
near the Pyau, Utrawali at Aurangabad
Road and sat hiding under its cover and
waited for the accused to come. After a
while, two men appeared from Aurangabad
side coming on Vicky (motor cycle
moped). The informer pointed out and left.
They were stopped. Mahendra Jatav was
riding the vicky and his brother Devendra
@ Dablu was sitting behind him. The two
were present in the court. Devendra was
carrying a leather bag in his hand, when
they opened the bag, they found a treasury
register of Unchagaon Hospital. A sealed
838 INDIAN LAW REPORTS ALLAHABAD SERIES
bundle was opened before him upon which
he deposed that this leather bag was
recovered from the accused Devendra. A
register and a file were also recovered from
this bag which were before him. From the
file two papers related to Unchagaon
Hospital were also recovered, the second
paper was written by the informant. Apart
from that, two seals related to Unchagaon
Hospital were also found. Apart from these
things, only Rs.3,887/- was recovered from
this
bag.
When
physical
search
of
Devendra was made, a country-made pistol
and two cartridges of 303 bore were
recovered from his person. Details of
recovered notes were given in the recovery
memo which was prepared by SI Rajendra
Singh on which they had signed. Upon
being asked about the vicky/moped in
question, the accused could not show the
papers and no registration was found,
thereafter the vehicle was taken into
custody. When they were bringing the
recovered articles alongwith both the
accused, one Durga was seen about whom
the accused Devendra told that this is the
owner of the moped vicky in question. The
accused Durga was also taken into custody
by the police and they reached Chowki,
New Mandi. After handing over the
accused there, the witness alongwith other
persons returned to Police Station Kotwali
Nagar. SI Rajendra Singh and other police
personnel remained at Chowki New Mandi
and kept on enquiring.

6.6. In the cross-examination this
witness deposed that at about 04:00 p.m. he
alongwith three other policemen went for
investigation of Case Crime No.595, under
Section 379 IPC which belonged to Devi
Pura Mohalla. When he reached at
Chauraha Anoopshahar Adda, SI Rajendra
Singh alongwith other policemen met there
and they sought for help regarding the
robbery in question. On being asked the
witness replied that in this case they have
no order of CO. At the behest of SI
Rajendra Singh, they reached immediately
at Anupshahar Adda by cycles which would
have taken about one and half an hour from
the police station to reach there. They left
Anupshahar station at about 5-1/2 hour.
Two Sub-Inspectors, one HC, 5 Constables
and one informer were there. They all had
separate cycles. No one from the public
was ready to be a witness. Village Utrawali
would be about 3-4 kms away from
Anupshahar station. The informer was with
SI Rajendra Singh. The accused were
coming from Aurangabad side. The way
which turns to Utrawali, they ambushed
near a Pyau. In the fard, the information of
the informer or the fact that the informer
went with the policemen to the spot and
pointed out at the accused are not
mentioned. All these facts are in GD. The
fard was not signed by the accused. As long
as the accused were in the police custody,
the copy of the fard given to them was not
deposited at the police station. He further
stated that on 11.10.1985 at about 09:30
p.m. near Uday Talkies his statement under
Section 161 CrPC was recorded in which
he stated about the other investigations. He
further stated that neither Durga Prasad
gave his moped nor they got the same
before him. The witness denied that the
accused persons were falsely implicated.

6.7. PW-4, SI Rajendra Singh
Chowdhary Police Station Bannadevi,
District Aligarh has deposed on oath that on
03.10.1985 he was posted as SI at OP New
Mandi, Police Station Kotwali Dehat,
Bulandshahr. Next day on 04.10.1985, he
was appointed as IO of the case. HC
Jaiprakash,
Constable
Babu
Khan,
Constable Rishipal were also with him.
When they came to Anupshahar station at
7 All. State of U.P. Vs. Devendra @ Dablu & Ors.
839
05:15 p.m, they received an information
from the informer that two miscreants of
this
robbery
were
returning
from
Aurangabad on vicky moped alongwith the
robbed articles and an illegal firearm was
also with them. On this information, he
tried to take witnesses from the public but
no one was ready. Meanwhile, SI Mr. S.S.
Chauhan Police Station Kotwali Nagar
alongwith Constable Surendra, Devendra
and Pramod met at the same place who
were assigned some investigation. The
witness told them the whole story and
asked for help. On this, Sri Chauhan
agreed, he also tried to take public
witnesses but no one was ready. Then the
policemen after their personal search went
to Aurangabad Road to arrest the accused
persons. After reaching near Utrawali Pyau
they hid there. After about 5-7 minutes, 2
persons were seen coming on a vicky from
Aurangabad side. The informer went away
after pointing out upon them, the policemen
stopped those persons. They tried to run
away but by using usual force they were
arrested. During their physical search all
the robbed articles as mentioned above as
well as a country-made pistol alongwith
two cartridges of 303 bore were recovered
and the motorcycle in question was also
taken into custody. After completing the
proceedings, they returned. On the way, the
accused Devendra told that the motorcycle
in question belonged to Durga who also
met on the way and was also arrested there.
The accused as well as the robbed articles
were presented at OP New Mandi. During
the
investigation,
statement
of
the
witnesses were recorded. On inquiry, the
accused persons confessed the offence and
the act of conspiracy done in connivance
with another accused Durga. He further
deposed that the site plan was prepared and
signed by him. He inquired the Branch
Manager who had given details of the
money. He further stated that it is wrong to
say that the accused persons were falsely
implicated due to old enmity with them.

7. Heard Sri N.K. Srivastava, learned
counsel for the State, Sri Sanjay Srivastava,
learned counsel for all the accused
respondents and perused the records.

8. The learned trial court has
acquitted the accused persons on the
following grounds:-

8.1. That no public witness had been
taken by the IO during the course of arrest
and recovery from the accused persons.

8.2. That the informant Bhagwat
Singh has not given any explanation
regarding visit of the house of Dalmor.

8.3. That it was the duty of the
informant to go to PHC, Unchagaon
directly with the salary amount rather to go
to the house of Dalmor. Thus, the informant
has committed negligence with regard to
his duty.

8.4. Dalmor was the best witness who
has not been examined while as per the
informant on his hue and cry Dalmor
reached on the spot within 5-6 seconds.

8.5. That the prosecution has
examined only Jagroop as PW-2 out of
Jagroop, Sardar Singh, Kailash and others
who has been declared hostile, why rest of
the witnesses had not been examined, has
not been explained.

8.6. That there is no averment of the
informer in the recovery memo. It has also
not been mentioned that the informer
accompanied the police upto the place of
840 INDIAN LAW REPORTS ALLAHABAD SERIES
recovery and had also pointed out towards
the accused persons.

8.7. That it is not proved that copies
of the recovery memo were provided to the
accused persons, as the same were not with
them at the time when they were admitted
to the lock-up of the police station.

8.8. That according to the witnesses
there were seal of SBI upon the notes but
the same has not been proved by any
officer of the bank.

8.9. That PW-1, Bhagwat Singh has
not stated either in the FIR or in his
statement under Section 161 CrPC
regarding deposit of Rs.900/- in the
bank.

8.10. That generally a person would
not carry the robbed goods on the next day
of the incident particularly when the robbed
money belonged to a bank with a seal.

8.11. That no person would carry the
robbed money in the same bag which had
been robbed alongwith the money.

8.12. That the informant has not given
any statement against the accused Durga
Prasad. He has been made accused only on
the basis of use of his moped by the other
accused persons. It is noteworthy that PW-4
Rajendra Chaudhary has accepted in his
cross-examination
that
none
of
the
witnesses had given statement that the
offence was conspired by the accused
Durga Prasad. Hence, no charge under
Section 392 IPC is proved against him.

9. On the basis of above grounds, the
trial court has acquitted the accused
persons.

10. The State appellant has taken
grounds in appeal that the order of acquittal
is wholly erroneous and illegal, against the
weight of evidence on record, the trial court
has erred in law by not placing implicit
reliance on the testimony of PW-1,
Bhagwat Singh. From the recovery of the
vehicle, the money i.e. cash amount and the
pistol and cartridges, the case was fully
established and proved and there was no
legal justification to disbelieve the evidence
of Mahendra Sing and Rajendra Chaudhary.
The evidence of police witnesses has been
quite illegally disbelieved. The prosecution
story inspires confidence and the contrary
view is wholly erroneous. Hence, the
appeal be allowed and the order of acquittal
of the accused be set aside and the accused
be convicted and sentenced in accordance
with law.

11. This appeal is decided as under
discussing the grounds taken by the trial
court to acquit the accused persons.

12. (i) The learned trial court has
taken ground that no public witness had
been taken by the IO during the course of
arrest and recovery from the accused
persons.

13. In this regard it would be proper
to evaluate and peruse the evidence
available on record. The incident had
occurred on 03.10.1985. It was not a simple
and not noticeable offence as the huge
government money had been robbed. In the
year of 1985 about Rs.30,000/- was a big
amount. The FIR had been lodged soon
after the incident and from the evidence it
is proved that after the incident the police
had become active as the government
money had been robbed and the informers
were directed to give the clue. There was
no dispute regarding the identity of the
7 All. State of U.P. Vs. Devendra @ Dablu & Ors.
841
accused persons as their names had already
been mentioned in the FIR, hence the
police had only to search and arrest the
accused persons alongwith the robbed
items.

14. PW-3 and PW-4 have deposed
unanimously that the whereabouts of the
accused persons had been given by the
informer. Since the communication made
by
the
informer
is
a
privileged
communication, hence PW-3 and PW-4
could not be compelled to say about this in
view of Section 125 of The Indian
Evidence Act. PW-3 had deposed that they
tried their best to take public witnesses but
no witness was ready to testify. In the
cross-examination a question was asked
about this fact on which the witness replied
that any person from the public was not
ready to be a witness. In this regard no
suggestion has been given from the side of
the accused persons that the police did not
try properly to procure any public witness.
PW-4, SI Rajendra Singh Chaudhary has
also deposed that in the course of search of
the case property and the accused persons
when reached Anoopshahar Adda at about
05:15 p.m. he got an information from the
informer that two accused persons are
coming on the same vicky used in
commission of crime with robbed materials
from the side of Aurangabad alongwith
illegal weapons. On this information he
tried to take witnesses from the public but
no one was ready. Meanwhile, the SI of
Kotwali Nagar Mr. SH Chauhan alongwith
Constable Surendra, Devendra and Pramod
met at the same place. He told them the
whole story and asked them to come for
help. Sri Chauhan agreed on this and also
tried to take public witnesses but no one
was ready then the police personnel
became witnesses and took each others'
personal search and convinced that no one
had any goods related to the case and went
towards the Aurangabad road with the
informer and hid under the cover of pyau.

15. In this regard, this witness has
also been cross-examined on which he
replied that even on the place of recovery
he waited for 5-6 minutes and tried to get
the witnesses but no one was ready to be a
witness. At that time there was not enough
time to take action against the witnesses
who did not turn up to testify. No
suggestion has been given to the witness
that he did not try his best to procure the
public witness for recovery.

16. It would be proper to discuss the
law regarding non-availability of a public
witness in a criminal case.

17. In Mukesh Vs. State of NCT of
Delhi and others, AIR 2017 SC 2161
(three
Judges
Bench),
Bhagwan
Jagannath
Markad
Vs.
State
of
Maharashtra, (2016) 10 SCC 537; Sadhu
Saran Singh Vs. State of UP, (2016) 4
SCC 357 it has been held that it is settled
law that non-examination of eye-witness
cannot be pressed into service like a
ritualistic formula for discarding the
prosecution case with stroke of pen. Court
can convict an accused on the statement of
a sole witness even if he is a related
witness. Non-examination of independent
witness could not be fatal to the case of
prosecution.

18. From the perusal of the evidence
of both the above witnesses it is very much
clear that they tried their best to take a
public witness but since none was ready to
cooperate with the police, they could not do
so. Generally, it is seen that due to fear of
enmity independent person do not come
forward to be a witness in a criminal case.
842 INDIAN LAW REPORTS ALLAHABAD SERIES
It is seen that offences are committed in
public places but people do not intervene to
save the life and personal liberty of the
victim. Even in civil cases people avoid to
be witness from either side as it develops
enmity for future. In such condition if only
police witnesses are there who are deposing
in favour of the prosecution in absence of
the public witness what would be the
evidentiary value of the police witness has
been discussed by the Apex Court in
several cases.

19. In Pramod Kumar Vs. State
NCT of Delhi, AIR 2013 SC 3344;
Govind Raju @ Govinda Vs. State and
another, AIR 2012 SC 1292 it has been
held that the testimony of police personnel
should be treated in the same manner as
testimony of any other witness. There is
no
principle
of
law
that
without
corroboration by independent witnesses,
the testimony of police personnel cannot
be relied on. The presumption that a
person acts honestly applies as much in
favour of a police personnel as of other
persons and it is not a proper judicial
approach to distrust and suspect them
without good reasons. As a rule it cannot
be stated that police officer can or cannot
be sole eye-witness in a criminal case.
Statement of police officer can be relied
upon and even form basis of conviction
when it is reliable, trustworthy and
preferably corroborative by other evidence
on record.

20. In Sandeep Vs. State of UP,
(2012) 6 SCC 107 the conviction was
upheld by the Apex Court which was solely
bases
upon
the
evidence
of
police
personnel. In this case only police parties
were examined as prosecution witnesses
and the labourers/independent witnesses
were not examined as witnesses.

21. In this case the accused were
named
in
FIR,
the
informant
was
recognizing them prior to the incident, the
part of money having seal of State Bank of
India and other materials which the
informant had at the time of incident, were
recovered and proved beyond reasonable
doubt in the court. Thus, the evidence of
police personnel finds support from the
evidence of PW-1 and the items recovered
from the accused persons for which no
explanation has been given from the side of
the accused persons. Thus, this ground
taken for acquittal by the learned trial court
is not tenable and is accordingly rejected.

22. (ii) The learned trial court had
taken ground that the informant Bhagwat
Singh has not given any explanation
regarding visit of the house of Dalmor.

23. According to this court probably
the learned trial court has not gone through
the FIR and the evidence. In the FIR it is
clearly mentioned that he parked his cycle
at the house of Dalmor Singh and went
towards Jahangirabad Bus Stand when this
incident took place. PW-1 has given similar
evidence on oath and on being crossexamined he has deposed that Dalmor is his
distant relative and he used to park his
cycle there. Whenever he come to collect
salary from Unchagaon, he used to park his
cycle at Dalmor's house. In this regard no
suggestion has been given to the witness
that he was telling a lie and he had not
parked his cycle at Dalmor's house on the
day of incident. Hence, this Court comes to
the conclusion that the finding recorded by
the learned trial court in this regard is
baseless and, therefore, rejected.

24. (iii) The learned trial court has
also concluded that it was the duty of the
informant to go to PHC, Unchagaon
7 All. State of U.P. Vs. Devendra @ Dablu & Ors.
843
directly with the salary amount rather to
go to the house of Dalmor.

25. According to this Court, it has
been
proved
from
the
evidence
of
informant PW-1 that it was his common
practice to park the cycle at the house of
Dalmor and to ride on bus with salary for
going to PHC, Unchagaon. On the fateful
day, the informant adopted the same
practice. It cannot be said that it was an
unusual behaviour of the informant as it
was done by him since long. It cannot be
said that by visiting the house of Dalmor to
park
the
cycle,
the
informant
has
committed negligence with regard to his
duty. According to this Court such act
cannot be made a ground for acquittal.

26. (iv) The learned trial court has
concluded that Dalmor was the best
witness which has not been examined by
the prosecution.

27. Certainly Dalmor Singh is
mentioned as witness at serial no.2 in the
charge sheet but he has not been examined.
Jagroop Singh witness at serial no.3 in the
charge sheet has been examined but he has
not supported the prosecution version.
Probably in apprehension of hostility of
Dalmor Singh, he would not have been
examined. There might be some other
reasons such as illness, absence or
reluctance of Dalmor Singh on account of
terror of the accused persons. This court
has already discussed this point earlier.

28. In Dharnidhar Vs. State of UP,
(2010) 7 SCC 759; Dalbir Kaur Vs. State
of Punjab, (1976) 4 SCC 158 it has been
held that non-examination of independent
eye-witnesses is inconsequential if the
witness was won over or terrorised by the
accused.

29. In Sandeep (supra) and Hukum
and others Vs. State of Rajasthan, 2001
CrLJ 511 it has been held that the public
prosecutor is not bound to examine such
witnesses which are not supportive of
prosecution's case. It has also been held
that public prosecutor is not bound to
examine all witnesses of a particular fact.

30. In the above circumstances if
Dalmor Singh had not been examined, the
same is not fatal for the prosecution.

31. (v) The learned trial court has
concluded that only Jagroop has been
examined out of Jagroop, Sardar Singh,
Kailash and others. The trial court has
also based his judgment of acquittal on
the ground that rest of the witnesses
named in charge sheet were not examined.
According to this Court this question has
already been answered. Due to the same
and similar ground and circumstances, rest
of the witnesses would not have been
examined. Hence, there is no need to
explain this point any more. The reason
given by this Court with regard to the nonexamination of Dalmor also applies to this
ground taken by the learned trial court.

32. (vi) The learned trial court had
concluded that there is no averment of
informer in the recovery memo and it has
also not been mentioned that the informer
accompanied the police to the place of
recovery and that he had also pointed out
towards the accused persons.

33. According to this Court the fact
regarding the information given by the
informer is a privileged communication
which is protected from disclosure in view
of Section 125 of The Indian Evidence Act.
According to this Court there was no need
to mention the above facts in the recovery
844 INDIAN LAW REPORTS ALLAHABAD SERIES
memo. These facts were foreign and
irrelevant to the recovery memo. So far as
the recovery memo is concerned, it is
exhaustive and comprehensive and it
contains all the elements necessary with
regard to the arrest and recovery. So far as
the information given by the informer and
reaching on the place of recovery and
pointing out towards the accused are
concerned, these facts are already mention
in case diary and has also been deposed on
oath by PW-3 and PW-4. Therefore, this
Court is of the view that the learned trial
court has made it a ground of acquittal
without any basis and cogent reason.

34. (vii) The trial court has also
concluded that if the copies of the
recovery memo would have been provided
to the accused persons, the same would
have been with them when they had been
admitted to the lock-up of the police
station.

35. In this regard, the recovery memo
Ex.Ka-2 is to be seen where it has been
written by SI that copies of the recovery
memo were provided to the accused
persons. It is true that there are only the
signatures of the police personnel as
witness of the recovery memo and it has
not been signed by the accused persons.
According to this Court there is no rule of
law
that
a
recovery
memo
would
necessarily be signed by the persons whom
any recovery has been made. In this regard
it has been deposed by PW-3 that accused
persons did not sign the recovery memo.
There is no rule of law that a copy of the
recovery memo has to be submitted by the
accused persons at the police station. It is
also noteworthy that in this regard no
suggestion has been given from the side of
the accused persons that the copies of the
recovery memo were not provided to them.
Hence, such plea could not be taken by
them and it was not available to the learned
trial court for making it a basis of acquittal.

36. (viii) The learned trial court has
concluded that though there was seal of
the State Bank of India on the notes
recovered during the course of recovery
but no officer of bank had been examined
to prove it.

37. According to this Court, even a
layman recognizes the seal/stamp of the
bank. It was found on the notes recovered
from the possession of the accused persons.
For this there was no need to call for an
officer from the concerned bank. The
particulars of the notes are on record which
show that out of Rs.30,865.40/- Rs.900/- of
the informant were deposited by him in his
and
his
wife's
account
and
rest
Rs.29,965.40/- were in the leather bag of
the informant out of which only Rs.3,887/-
were recovered from the accused persons
and rest of the money were spent. In this
regard evidence of PW-3 is material who
has given description of the recovered
notes that three bundle of 10-10 rupees
total Rs.3,000/-, one bundle of 5 rupees
total Rs.500/-, one bundle of two rupees
total Rs.200/-, one note of Rs.100/-, eight
notes of 10 rupees total Rs.80/- and seven
notes of one rupees total Rs.7/- gross total
Rs.3,887/- were recovered. The bundle of
notes of Rs.10/- Rs.5/- and Rs.2/- were
bearing the seal of State Bank of India
Bulandshahar. There were chits of bank
dated 03.10.1985 on all three bundles of
Rs.10/-, chit of 30.09.1985 on the bundle of
Rs.5/-, chit of 11.04.1985 on the bundle of
Rs.2/- were also found. According to this
Court such evidence already present on the
money recovered from the accused persons
clearly
established
that
the
money
recovered from the possession of the
7 All. State of U.P. Vs. Devendra @ Dablu & Ors.
845
accused persons was the part of the money
withdrawn from the State Bank by the
informant. Therefore, this Court is of the
considered view that there was no need to
summon any officer of the State Bank of
India, Bulandshahar Branch to prove the
seal present on the alleged notes. In this
regard this Court has scrutinized the
evidence of PW-3 and PW-4. The learned
counsel for the accused persons have not
cross-examined these witnesses on this
point that the money recovered so was not
the money withdrawn from the said bank
by the informant on the day of occurrence.
Therefore, there was no occasion for the
learned trial court to concoct and imagine
such ground to pass an order of acquittal.

38. (ix) The learned trial court has
concluded that PW-1 Bhagwat Singh has
not stated either in the FIR or in his
statement under Section 161 CrPC that
out of total amount he had deposited
Rs.900/- in the bank.

39. According to this court it is also
an
imaginary
and
concocted
ground
concocted by the learned trial court without
any basis. It is very much clear from the
FIR that the informant had Rs.29,965.40/-
in leather bag when he left the premises of
the State Bank. From the documentary
evidence Ex.Ka-3 it is fully established that
virtually
Rs.30,865.40/-
had
been
withdrawn. From the original pass-book of
the informant and his wife available on
record it is established that out of the above
amount the informant had deposited
Rs.900/- in his and his wife's account.
Therefore, at the time of incident he had
only Rs.29,965.40/- in his leather bag
which was robbed. Therefore, there was no
need to give the description of the whole
amount which had been withdrawn by him
from the bank. It is not a case of
accounting. The FIR must be concise, it is
not an encyclopedia in which all the facts
must be mentioned. It is an instrument only
to
accelerate
the
police
machinery,
therefore,
non-mentioning
the
fact
regarding deposition of Rs.900/- in the
bank in the FIR or not giving statement in
this regard under Section 161 CrPC is not
fatal for the prosecution. (See Bable Vs.
State of Chhattisgarh, AIR 2012 SC
2621,
Bhagwan
Jagannath
Markad
(supra); Jarnail Singh Vs. State of
Punjab, 2009 (6) Supreme 526.

40. (x-xi) The learned trial court has
concluded that generally a person would
not carry the robbed goods on the next day
of the incident particularly when the
robbed money was bearing a seal of bank.

41. According to this Court one
cannot imagine human behaviour of
another person. Different human being
behave differently. In several cases it has
been held that even devil does not know
what is going on in the mind of an accused.
It depends on the personality of the person
concerned. The reaction, conduct and
behaviour of the person cannot be similar
and equal. Thus, it cannot be said that when
such miscreants known to the informant are
robbing him in a day-light, they cannot
move with the robbed items in the same
bag in a day hour. Hence, this ground taken
by the learned trial court is not sustainable.

42. Earlier it has been made clear that
several grounds taken for passing an order
of acquittal by the learned trial Magistrate
have no legs and basis as no proper crossexamination have been done from the side
of the accused persons. In Mahaveer
Singh Vs. State of Haryana, (2014) 6
SCC 716; Atluri Brahma Nandam Vs.
Anne
Sai
Bapuji
and
Laxmibai
846 INDIAN LAW REPORTS ALLAHABAD SERIES
Bhagwant Buva, AIR 2013 SC 1204 it has
been held that it is a settled legal
proposition that in case the question is not
put to the witness in cross-examination
who could furnish explanation on a
particular issue, the correctness or legality
of the said facts/issue could not be raised.

43. According to this Court on the
basis of the principles laid down in the
above precedents it can be said that since
no proper cross-examination have been
made and no proper suggestions have been
given to the witnesses, therefore, the
evidence of the witnesses is not liable to be
questioned.

44. (xii) The learned trial court has
taken ground that the informant has not
given any statement against the accused
Durga Prasad. He has been made accused
only on the basis of use of his moped by
the other accused persons. PW-4, Rajendra
Chaudhary has admitted in his crossexamination that none of the witnesses had
given statement that the offence was
conspired by him. Hence, no charge under
Section 392 IPC is proved against him.

45. In this regard the evidence of
witnesses of fact i.e. PW-1 and PW-2 is
immaterial and it is not expected from them
to know regarding any conspiracy occurred
among the accused persons. In this regard
only the statement of PW-3 and PW-4 are
relevant. PW-3 has deposed that accused
Devendra had confessed that moped
belonged to accused Durga Prasad.